Default Bail, Personal Liberty, and the Master of the Roster

On 26th April 2023, in a judgment called Ritu Chhabaria vs Union of India, a two-judge bench of the Supreme Court held that default bail – or statutory bail – under the Code of Criminal Procedure was “a fundamental right directly flowing from Article 21 of the Constitution of India.” The Court went on to decry the practice of investigative agencies filing incomplete charge-sheets purely with a view to defeating the right to default/statutory bail, and held – in particular – that “without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC … such a chargesheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC.”

This post is not concerned with the merits of the judgment, although it is worthwhile to note that it is one of the few judgments on personal liberty and the CrPC that actually takes seriously the power imbalance between the State and the individual, and attempts to remedy that by insisting on giving procedural safeguards under the CrPC some real bite. As the Court noted – in language that is lamentably all too rare in the annals of Indian civil liberties jurisprudence:

The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused. While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigation authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands.

Be that as it may, it is the events after the passage of this judgment that merit scrutiny. On the 1st of May (i.e., today), State counsel “mentioned” before the Chief Justice’s court, for urgent listing, an application (inter alia) for “recall” of the judgment in Ritu Chhabaria. On hearing, the Chief Justice’s bench passed the following order, which can be extracted in full:

Upon being mentioned, taken on board.

List the proceedings on 4 May 2023 before a bench of three-Judges.

In the meantime, in the event that any other applications have been filed before any other Court on the basis of the judgment of which recall is sought, they shall be presently deferred beyond 4 May 2023.

This short order is deeply concerning from the perspectives of civil liberties, the stability of precedent, and judicial propriety, for the following reasons.

First, once a judgment of the Court has attained finality, there are, in essence, two ways in which it can be reversed: either through a review, which is heard by the same bench that passed the judgment, or if another bench of coordinate strength, after a full hearing on the same issue, disagrees, and refers the matter to the Chief Justice for constituting a larger bench to resolve the difference in views. These guardrails are vital to ensure the sanctity of precedent, and to ensure that judgments of the Court cannot simply be altered on a whim.

What has happened here, however, is that the State – being displeased by a judgment against it – has attempted to have the judgment recalled – and that too, by a different bench! To achieve this outcome, the State has gone to the Chief Justice, and essentially invoked the Chief Justice’s administrative power as master of the roster to constitute benches – but for the purpose of judicially reversing an unfavourable judgment. It is a matter of grave concern that the Chief Justice’s bench has passed an order acquiescing to this request. Not only is the constitution of a three-judge bench to consider a “recall” of the Ritu Chhabaria judgment irregular, but for a three-judge bench to be even constituted in this case, there would have had to first be a reasoned judgment by a coordinate bench disagreeing with the view taken in Ritu Chhabaria, and providing reasoning for the same. That entire process has been short-circuited in this case, purely by the Chief Justice invoking administrative powers of the master of the roster.

For the last six years, this blog has consistently criticised the “master of the roster” powers enjoyed by the Office of the Chief Justice. Today’s order, however, goes one step further: it creates a precedent where – in the future – if the State is displeased by a judgment, instead of filing a review, or persuading another coordinate bench of its point of view in adverserial proceedings, it can simply approach the Chief Justice ex parte, on an oral mentioning, and secure a hearing before a larger bench to “recall” the unfavourable order. This effectively puts the precedent of the Court entirely at the mercy of the predilections of a particular Chief Justice.

Secondly, and worse, in the final line, the Court says that pending default bail applications cannot be considered by other courts until the three-judge bench has heard the “recall” application. Effectively, this is one two-judge bench interdicting – or staying – the operation of a coordinate bench’s judgment – and that too, on an oral, ex parte mentioning, without a reasoned order. Once again, this appears to be a perilous escalation of the Chief Justice’s administrative powers as the master of the roster into judicial powers over other judges of the Court: it effectively turns the Chief Justice into an imperium in imperio, an appellate authority within the Supreme Court.

Thirdly, and most importantly, on substance: the judgment in Ritu Chhabaria has not been expressly or formally stayed. That being the case, on what basis has this bench denied to detainees across the country their right to default bail – which, as per Ritu Chhabaria – is a fundamental right under Article 21 – until after the 4th of May? Effectively, even as one bench of the Supreme Court has held that default bail is a fundamental right, another bench – on an oral, ex parte mentioning by the State – has suspended the operation of this fundamental right.

In November 2020, the Supreme Court – in one of its more memorable decisions – eloquently noted: “Deprivation of liberty even for a single day is one day too many.” The judgment was Arnab Goswami vs State of Maharashtra. The author was Justice D.Y. Chandrachud. One wishes that, as he had been dictating the final line of today’s order, Chandrachud CJI had recalled the wise words of Chandrachud J. One also wishes that he had recalled the words of the dissenting judgment in A.D.M. Jabalpur, a dissent that he himself had resurrected six years ago, in Puttaswamy. As Justice H.R. Khanna had memorably observed: “the history of personal liberty is largely the history of insistence upon procedure.”